R. v. Swain, [1991] 1 S.C.R. 933

Appellant was arrested and charged with assault and aggravated assault and was transferred from jail to a Mental Health Centre for the criminally insane. His condition improved rapidly with medication and he was conditionally released into the community. Appellant returned briefly to jail and was granted bail on conditions shortly thereafter. He remained on bail until June 10, 1985, and continued to take medication and to see a psychiatrist.

At trial, the Crown sought to adduce evidence with respect to insanity at the time of the offence; the appellant objected. After conducting a voir dire, the trial judge ruled that the Crown could adduce such evidence. Appellant was found not guilty by reason of insanity on all counts. Defence counsel then moved to have s. 542(2) of the Criminal Code (now s. 614), which provides for the automatic detention at the pleasure of the (page 935) Lieutenant Governor of an insanity acquittee, declared inoperative on the basis that it violated the Canadian Charter of Rights and Freedoms. The judge held that appellant's constitutional rights were not infringed by s. 542(2) and ordered that he be kept in strict custody until the Lieutenant Governor's pleasure was known. Appellant appealed and applied for bail pending appeal. This application was adjourned in order to permit an early hearing of the appellant's case by the Advisory Review Board which advised the Lieutenant Governor concerning the detention of insanity acquittees. The Lieutenant Governor issued a warrant further detaining the appellant in safe custody in a mental hospital for assessment and report to the Advisory Review Board within 30 days. Neither the appellant nor his counsel received prior notice of this decision and accordingly neither made submissions with respect to this decision.

Appellant was sent for psychiatric examination and assessment and remained a patient for 30 days. The Advisory Review Board held a review hearing, pursuant to s. 547 of the Code. Appellant and his counsel were present. The Board recommended that appellant should remain in safe custody and that the administrator of the mental facility in which he was detained have the discretion to permit him to re-enter the community with conditions as to supervision and follow-up treatment. Shortly thereafter, the Lieutenant Governor issued a warrant implementing those recommendations.

Appellant's counsel requested the right to appear and make submissions before the Lieutenant Governor at the time when the recommendation of the Advisory Review Board would be considered. This request was not granted. It was not until after the Lieutenant Governor's warrant for appellant's further detention had issued that the recommendation of the Advisory Review Board was released to the appellant's counsel. A majority of the Ontario Court of Appeal dismissed the appeal.

The constitutional questions queried: (1) whether s. 542(2) of the Criminal Code was intra vires; (2) whether the common law criteria permitting the Crown (page 936) to adduce evidence of an accused's insanity violated ss. 7, 9, and 15 of the Canadian Charter of Rights and Freedoms; (3) and if so, whether the common law criteria were justified by s. 1 of the Charter; (4) whether the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code, violated ss. 7 and 9 of the Canadian Charter of Rights and Freedoms, and (5) if so, whether that power was justified by s. 1 of the Charter.

Held: The appeal should be allowed. The constitutional questions were answered as follows: (1) s. 542(2) of the Criminal Code was intra vires; (2) the common law criteria limited s. 7 of the Charter -- it was not necessary to consider ss. 9 and 15 of the Charter -- and (3) were not justified by s. 1; (4) s. 542(2) of the Criminal Code violated ss. 7 and 9 of the Charter and (5) was not justified by s. 1.

Per Lamer C.J. and Sopinka and Cory JJ. at 954: A period of temporary validity will extend for a period of six months because of the serious consequences of striking s. 542(2). During this period, detentions ordered under s. 542(2) will be limited to 30 days in most instances, or to a maximum of 60 days where the Crown establishes that a longer period is required in the particular circumstances of the case. Courts may choose to limit their orders under s. 542(2) to between 30 and 60 days. If they do not, the writ of habeas corpus will be available to the individual acquittee at the expiration of 30 days.

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